Mead v. Arms
| Decision Date | 01 March 1830 |
| Citation | 3 Vt. 148 |
| Parties | JOEL MEAD v. JONATHAN ARMS |
| Court | Vermont Supreme Court |
This was a petition to the court of chancery brought by Arms for a rehearing in a cause in which there had been a decree against him in favor of Mead. The petitioner prayed for a rehearing on the ground that, since the trial of the cause, he had discovered new and material evidence not known to him before. The petition also disclosed other grounds on which he insisted a rehearing ought to be granted. The petitionee demurred to the petition, and assigned for causes that the introduction of said new evidence mentioned in the petition made a new case different from the one tried by the court that no new witness could be examined on a rehearing of the cause as to any matter in issue, and not proved on the trial and if such evidence be taken it could not be used; and that the affidavits of the new witnesses were not attached to the petition.
The cause was argued by O. H. Smith, for the petitioner, and by Mr. Baylies for the petitionee.
O. H Smith, for petitioner.
Baylies, for petitionee.
This is a petition for a rehearing of a cause in chancery. The petition is demurred to because it discloses new discovered evidence as the ground of the application; and the question is whether it is a sufficient reason to grant a rehearing that a party has discovered new testimony which was unknown to him at the time the decree was pronounced. This is altogether distinct from the question, whether, if a rehearing is granted, the court may not enlarge the order of publication, so as to admit further testimony if the equity of the case should so require.
The principal importance attached to this question is as a question of practice; and in that view it is of some consequence that no rule of practice should now be introduced which would have the effect of creating any further delays in our chancery proceedings, unless the ends of justice imperiously require it. Nor can we adopt all the rules of practice in the courts of chancery in Great Britain, or in our sister states, where they have a separate court of chancery. Our court sits but once in a year in each county, and but one week is allowed for all the law and chancery business in that county. In the courts of chancery in England it is almost a matter of course to grant a rehearing on the certificate of two respectable counsel, that it is a case proper to be reheard, and on the rehearing all the testimony taken in the case may be read. But I apprehend this certificate is upon the case as it was heard, and that the discretion of the chancellor is exercised upon the case which has been before him, and which was once heard, and is usually upon a suggestion that the law or the fact, or proof upon which the decree was made, was mistaken.--Ca. Ch. 54. The form of the petition given in Harrison's Chancery seems to countenance this idea. If it is so far a matter of doubt whether the proof or fact was not mistaken, that two counsel will certify that it ought to be reheard, and the chancellor thinks the party ought to be indulged with a rehearing, it is granted. No case has been produced, and I have been unable to find any, where additional or new discovered testimony which will make a point clear that was doubtful, or will make a new case, has been made the ground for allowing a rehearing. If this was to be indulged, the hearing on the application for a rehearing would be as intricate and perplexing as a hearing upon the original case, and in fact would be hearing the cause anew. If the party petitioning is to be indulged by introducing new testimony, the party opposing should have the same indulgence; and the application for a rehearing would be but a hearing of the original cause upon further testimony, to be reheard again upon still further testimony, if the application should be successful. We believe the whole course of proceedings both in law and chancery is opposed to such a course. In courts of law a new trial is rarely granted for new discovered evidence, and in no case, as far as I can learn, has a rehearing been granted in chancery for that cause.
After publication there is no further testimony taken unless by order of court, and there can be found no order, form, or direction, for taking testimony after a decree pronounced preparatory to a hearing of a petition for a rehearing. There is no precedent or dictum which authorizes the hearing of an ex parte affidavit of a witness in any stage...
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Barz v. Sawyer
... ... such as, if true, ought to produce on another trial of the ... issue a different result on the merits. (4) It is not merely ... cumulative. Mead v. Arms, 3 Vt. 148 (21 Am. Dec ... 581). That such bill would lie for newly discovered evidence ... or for new matter arising after the entry of ... ...
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Daisy J. Turner, Admx. v. Alba M. Bragg
...to reopen a decree is not viewed with favor. Barnum v. McDaniels, 6 Vt. 177, 179; Slason v. Cannon, 19 Vt. 219, 220. Also see Mead v. Arms, 3 Vt. 148, 21 Am Dec 581; Blair v. Ritchie, 73 Vt. 109, 50 A. Brainard v. Morse, 47 Vt. 320; Stevens v. Dewey, 27 Vt. 638. It should be noted that when......
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George P. Blair, Assignee v. Ritchie & Warden
...by the mandate. The determination of the question presented will necessitate a further inquiry regarding chancery practice. In Mead v. Arms, 3 Vt. 148, a rehearing prayed for on the ground of newly discovered evidence, and was refused in this language: "From an examination of all the author......